Texas criminal discovery rules are continually evolving and the best criminal defense lawyers in Houston and across the state will not overlook any of the tools that may help lawyers discover evidence favorable to their clients. Three key tools for discovery are the subpoena, subpoena duces tecum and writ of attachment. A subpoena is simply an order to appear in court and give testimony. A subpoena duces tecum is an order for the witness to appear in court and bring something — such as documents or tangible evidence. When a defense attorney applies with the court for a subpoena duces tecum and seeks documents, it is usually a good practice to include a standard business records affidavit, along with the subpoena duces tecum, setting forth the documents the lawyer wishes to receive. (If the witness fills out the affidavit, swears before a notary, and attaches the affidavit to the documents, the documents will often be admissible in court — without the necessity of a live witness. This can save the witness from having to make two trips to court. In fact, a witness who produces the requested documents in advance of the court date and attaches a sworn, business records affidavit to the documents, may sometimes be released from having to appear in court at all.)
When the attorney goes to court on the date a subpoena is returnable, the attorney should arrive early and call out the person’s name and try to locate the witness. If the attorney cannot locate the person targeted in the subpoena and the attorney has written proof that the person has been personally served with the subpoena, the attorney should approach the judge and ask her to sign a “Writ of Attachment.” (The attorney should bring to court a written, writ of attachment, plus three extra copies. The attorney must file the original and get a file-stamped copy.) When the judge signs the writ of attachment, the attorney should get at least two certified copies — one for the bailiff and one for the attorney’s own file. The clerk will then issue a warrant for the person’s arrest and may even ask the judge to set a bond. The bailiff is then authorized to arrest the witness and bring the witness to court.
An excellent criminal defense attorney, who knows the rules of discovery and how to use them, can often achieve a superior result for any client accused of a crime in Harris County or elsewhere. The difference between victory and defeat is often knowing what to look for — and how to get it.